The Issue The issue as drawn by the letter of denial was whether Petitioner had lost his effectiveness as a teacher and was a moral person. The facts showed that there was substantial delay in the Respondents' decision on Petitioner's application. The real issue is whether said delay certified Petitioner by operation of law.
Findings Of Fact The Petitioner, Fred Priester, made application for a teacher's certificate on August 8, 1979, to the Department of Education. On this application, Petitioner did not reveal any of his arrests or his conviction. See Respondents' Exhibit #2. Subsequently, the Duval County School Board and Florida's Department of Education became aware of Petitioner's arrests from record checks based on Petitioner's fingerprints and from Petitioner's correspondence to the Department of Education and the Governor's office. See Petitioner's Exhibit #3, Gary Simmons' (Duval County School Board) memorandum of August 2, 1979; Respondents' Exhibit #3, Petitioner's letter to Simmons of November 26, 1979; Respondents' Exhibit #4, Petitioner's letter to Governor Bob Graham of August 18, 1980; and Petitioner's Exhibit #4, Petitioner's letter to Donald Griesheimer of October 13, 1980. No official action was ever taken on this first application for certification. Petitioner made a second application for teacher's certification on June 16, 1981, which was received by the Department of Education on June 22, 1981. See Respondents' Exhibits #5A and 5B. Petitioner revealed on this application his several arrests, but not his conviction. Petitioner's uncontroverted testimony was that he was asked by Griesheimer to refile and respond to those arrests which were the subject of Simmons' memorandum, which Petitioner did. Petitioner's arrest for which he was convicted was not part of that FBI record reported in Simmons' memorandum, and Petitioner did not respond to it. Petitioner referenced his early release in his letter of August 18, 1980, to Governor Graham. The Petitioner was not trying to conceal anything on his second application, but was following the directions he received in responding to the question about his arrests. The Department of Education did not take any action regarding Petitioner's second application until January 6, 1982. See Respondents' Exhibit #6. There is no record of any interim inquiry from the Department of Education for additional information from the Petitioner or for correction of any errors or omissions. The Department of Education did not take action on Petitioner's second application until well after 90 days of the date the Department received Petitioner's application. The parties submitted proposed findings of fact and memoranda of law. To the extent the proposed findings have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Recommendation The Petitioner's application having been approved by operation of law, the Department of Education should follow the provisions of Section 120.60(2), Florida Statutes, and issue the Petitioner's certificate. DONE and ORDERED this 4th day of June, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1982. COPIES FURNISHED: Mr. Fred M. Priester 1657 West 30th Street Jacksonville, Florida 32209 George L. Waas, Esquire 1114 East Park Avenue Tallahassee, Florida 32301 Donald L. Griesheimer, Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 =================================================================
Findings Of Fact Petitioner applied for licensure as a Class D and G security officer. By letter dated June 18, 1996, Respondent denied Petitioner's application. The amended denial letter stated that the Respondent's decision to deny Petitioner's application was based on Sections 493.6118(1)(f) and (j), Florida Statutes. Specifically, the denial was because Petitioner (1) committed misconduct in the activities regulated under Chapter 493, Florida Statutes, by making sexual advances toward a fourteen year old student while on duty as a security officer; and (2) committed an act of violence or used force on another person which was not for his or another person's lawful protection. Such contentions put at issue whether Petitioner possessed the requisite "good moral character" required for licensure under Section 493.6106(1)(b), Florida Statutes. Petitioner timely requested a formal hearing, after which Respondent referred the matter to the Division of Administrative Hearings. The undersigned noticed the matter for hearing upon the issues cited in the denial letter. Petitioner failed to appear at the formal hearing and no evidence was presented on his behalf.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Licensing, enter a final order denying Petitioner's application for a Class D and G license. DONE and ENTERED this 16th day of January, 1997, in Tallahassee, Florida. CARLOYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-647 Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 1997. COPIES FURNISHED: Kristi Reid Bronson, Esquire Department of State, Division of Licensing The Capitol, MS-4 Tallahassee, Florida 32399-0250 Maneram Maharaj 1204 Rinkfield Place Brandon, Florida 33511 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
Recommendation Based on the foregoing findings of fact and conclusions of law I hereby recommend that the complaint filed herein be dismissed in its entirety. DONE AND ENTERED this 6th day of May, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact The Petitioner is a Florida Highway Patrol trooper and has permanent Career Service status. His appeal of his eight (8) hour suspension was timely filed with the Career Service Commission. Timecard records of the Petitioner were introduced and show that he had indicated that he was on duty at the times indicated on the cards. Lieutenant Tom Sigmond testified that he had examined the radio logs of the Florida Highway Patrol station to which he and the Petitioner were assigned and had compared the radio log entries for the dates which the Petitioner had indicated on his timecards that he was on duty. Lieutenant Sigmond stated that his examination of these records revealed that the Petitioner's timecard entries were inaccurate, however, that the entries taken as a whole did not reveal any attempt by the Petitioner to defraud the State by certifying that he had worked more hours than he was required to work. What Lieutenant Sigmond found were inaccuracies between the times the Petitioner had indicated on his timecard he had worked and the times he had actually worked as reflected by entries on the radio log. The radio log is maintained at the Highway Patrol station by the dispatcher on duty and reflects the date and time that patrol personnel go on duty and off duty. The inaccuracies found by Lieutenant Sigmond occurred on weekends when the Petitioner was attending college classes. The Petitioner had approval to work split hours as the duty supervisor on weekends when he attended college classes. There was no impropriety in the Petitioner attending classes or working split shifts. Subsequent to the closing of the agency's case, objection and motion to strike Lieutenant Sigmond's testimony was made by the Petitioner on the basis that his testimony regarding logs was hearsay upon which no finding could be based. The Hearing Officer permitted the agency to reopen its case and to introduce the actual radio logs about which Lieutenant Sigmond had testified. The agency presented the radio logs, which were introduced and substituted at a later date permitted. The agency, again, rested and the Petitioner moved to exclude the radio logs on the basis that they had not been properly authenticated by the custodian of the records. This motion by the Petitioner was denied by the Hearing Officer. Comparison of the radio logs with the timecards prepared by the Petitioner substantiates the testimony presented by Lieutenant Sigmond.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the agency's action be sustained. DONE and ENTERED this 27th day of May, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John Whitney, Esq. Department of Law Enforcement Neil Kirkman Building Tallahassee, FL 32304 Frederick E. Landt, III, Esq. P. O. Box 1943 Ocala, FL 32670 Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, FL 32304
The Issue The issue in this case is whether Respondent, a certified law enforcement officer, failed to maintain good moral character by knowingly making a false statement in writing with the intent to mislead a public servant in the performance of his official duties, a failure that, if proved, would warrant the imposition of discipline upon Respondent's certificate.
Findings Of Fact Respondent Pablo Barrios ("Barrios") is a Florida- certified law enforcement officer and, as such, falls under the regulatory and disciplinary jurisdiction of Petitioner Criminal Justice Standards and Training Commission ("Commission"). At the time of the final hearing, and at all times relevant to this case, Barrios was employed as a police officer by Florida International University ("FIU"). The events giving rise to this proceeding took place on July 17, 2003. That morning, Barrios attended an in-service training class taught by Sgt. Alfonso. There were about a dozen other FIU police officers in the class. Shortly after the class began, Barrios and Sgt. Alfonso got into an argument over Barrios's use of a digital recorder. (Sgt. Alfonso was apparently offended that Barrios would record the lecture; Barrios claimed that he was merely using the device to keep track of the time.) Sgt. Alfonso asked Barrios to leave the classroom. Barrios did leave, remarking on his way out that if he (Barrios) had intended to turn on the recording device, he would first have told everyone in the "fucking room." Barrios later returned to the classroom and sat in the back. The lesson proceeded to conclusion uneventfully. When the class ended, Capt. Wright entered the room. Someone had reported the verbal altercation between Barrios and Sgt. Alfonso, and Capt. Wright was there to find out what had happened. To that end, Capt. Wright asked each of the officers present to prepare a statement describing the incident and stating specifically whether "improper language" had been used. In response to Capt. Wright's request, Barrios wrote the following statement: I was single[d] out by Sergeant Alfonso for taking out [sic] a personal recorder out of my laptop bag. Capt. Wright considered Barrios's statement to be incomplete. He therefore wrote the following question beneath Barrios's description of the event: Lt. Barrios, was improper language ever used during the incident. Barrios answered the captain's query, in writing, with one word: "No."1 Ultimate Factual Determinations The undersigned infers (and is convinced) that Barrios knew, when presented with Capt. Wright's imprecisely drafted question regarding the use of "improper language," that this interrogatory, though ambiguous and open to interpretation, was meant to require Barrios to either admit or deny using the "f" word during the incident. The undersigned further infers (but is not convinced) that Barrios was likely aware that Capt. Wright would misinterpret Barrios's negative answer as an affirmation that no one (including Barrios) had uttered the word "fuck" or any of its cognates. The undersigned is not clearly convinced, however, that Barrios intended to mislead Capt. Wright.2 Rather, since admitting that his language had been "improper" would have been tantamount to confessing misbehavior,3 Barrios likely intended to deny having engaged in inappropriate behavior. The undersigned is also not clearly convinced that Barrios's statement was false, for two reasons. First, the undersigned is not convinced that Barrios believed his language to have been improper.4 To the contrary, the evidence persuades the undersigned that Barrios subjectively believed his words were justified. It is likely, in other words, that Barrios made what was, for him, a true statement. Second, Barrios's statement has not been clearly and convincingly falsified——that is, shown via ordinary evidence to be objectively untrue. Because the adjective "improper" reflects an opinion or judgment about something, such an opinion could be falsified only if5 (among other things) there were a clear objective standard against which to measure or judge the thing in question.6 The Commission offered no evidence regarding such an objective standard for determining that Barrios's language was improper and hence failed objectively to falsify Barrios's denial that improper language had been used.7 In sum, the Commission failed clearly and convincingly to prove, as was its burden, that Barrios made a "false statement" with the intent to mislead Capt. Wright.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Barrios not guilty of failing to maintain good moral character by knowingly making a false statement in writing with the intent to mislead a public servant in the performance of his official duties. DONE AND ENTERED this 16th day of February, 2005, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2005.
Findings Of Fact The applicant, Rita Marie Horton, has applied for licensure as a Deception Detection Examiner or intern. Her application reveals that she meets all the criteria stated for licensure as a Deception Detection Examiner with the exception of Sub-section 4, of Section 493.43, Florida Statutes. Horton was approximately four year /* a deception detection examiners with Wells Fargo /* St. Louis, Missouri. During her employment with /* provided Deception Detection services to various /* on a contract bases through Wells Fargo. In /* she did approximately eight to ten tests per /* involved in this work during her entire employment /* Horton's credentials are excellent /* she has conducted approximately 6,000 examinations /* employment with Wells Fargo. /*
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the applicant's application for licensure as an intern be approved and upon demonstrating that she has acquired an additional one years experience during which she has provided services to police departments similar to those provided during her employment with Wells Fargo, that she be licensed as a Deception Detection Examiner. DONE and ORDERED this 27th day of November, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings 101 Collins Building MAILING ADDRESS: Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Rita Marie Horton c/o Lincoln M. Zion, Inc. 3050 Biscayne Boulevard Miami, Florida 33137 Gerald Curington, Esquire Department of State The Capitol Tallahassee, Florida 32304 Marvin Sirotowitz Division of Licensing The Capitol Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue The issue in the case is whether the Respondent is quilty of the violation alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Respondent was certified by the Commission on February 28, 1992, and was issued Law Enforcement certificate number 122723. (Stipulation) The Respondent was employed as a Special Agent for the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, from September 13, 1991, to October 18, 1996. (Stipulation) Kenneth Hunter is employed as a deputy sheriff with the Leon County Sheriff's Office, and has been so employed since July 5, 1989. Deputy Hunter has known the Respondent since 1991, when they attended law enforcement academy together. Deputy Hunter and the Respondent kept in touch over that period of time. On June 17, 1995, at approximately 9:00 a.m., the Respondent called Deputy Hunter at his residence. The Respondent told Deputy Hunter that the Respondent's brother, Reverend Gregory James, had been beaten up by Colby Richardson, and that Richardson had stolen some money from his brother, a local minister. The Respondent told Deputy Hunter that the amount stolen was $1,500.00. Some of the money which was taken was money which Reverend James had withdrawn intending to give it to the Respondent. The Respondent stated to Hunter that the prior evening he had spoken to Colby Richardson, and that Mr. Richardson had agreed to return the money taken from Reverend James. The Respondent asked Deputy Hunter to accompany him to Quincy, Florida, to find Richardson. When Respondent called Hunter, the Respondent was on his way to Pensacola, Florida, for a professional course, and was driving his state-issued vehicle which was equipped with a police radio and strobe light. The Respondent picked up Deputy Hunter at Hunter's residence, and introduced Hunter to Reverend James, who was riding in the back seat of the vehicle. Deputy Hunter asked the Respondent why his brother had not reported the robbery, and the Respondent stated that his brother was well known in the community, and did not want to make "a big stink" about it. The Respondent, Deputy Hunter, and Reverend James traveled to Quincy, Florida. While in Quincy, the Respondent spoke to two females who knew Mr. Richardson, and gave the Respondent the telephone number of Mr. Richardson's girlfriend, Rosilyn Copeland. The Respondent telephoned Ms. Copeland and asked for and received directions to her residence. The Respondent, Respondent's brother, and Deputy Hunter traveled to Ms. Copeland's residence in Quincy, Florida. The Respondent knocked on the door, and when Ms. Copeland answered the door, introduced himself as "Agent James," and introduced Deputy Hunter as "Officer Hunter." The Respondent was wearing black pants, a black polo shirt, and a black baseball cap. A conflict in the testimony exists regarding whether the Respondent, who was wearing a badge on a chain around his neck, removed his Special Agent badge from beneath his shirt and showed it to Ms. Copeland. Ms. Copeland later believed that the Respondent was a law enforcement officer who was looking for Mr. Richardson to recover money Mr. Richardson had stolen from Respondent's brother. The Respondent testified at hearing, and stated he was wearing a black shirt on the day in question, and his badge could have been visible. Deputy Hunter gave a statement to the investigator. It is noted that Hunter was also outside his jurisdiction and was the subject or the potential subject of an investigation into his activities in association with the Respondent during this incident. Hunter stated that he never identified himself to anyone they met, and that the Respondent identified himself as “Agent James” and him as “Deputy Hunter.” Hunter stated that he informed the Respondent that it was inappropriate to introduce themselves as officers, and told him not to do that. The Respondent continued to talk with Ms. Copeland about Mr. Richardson's location, and Ms. Copeland told them that she had driven Mr. Richardson to his mother's house. The Respondent asked Ms. Copeland how he could get in touch with Mr. Richardson, and she stated that she would call Mr. Richardson. Ms. Copeland contacted Mr. Richardson on the telephone, and the Respondent, who was standing outside, entered the apartment and took the telephone from Ms. Copeland. The Respondent talked to Mr. Richardson and told him that he had better give back the money. The Respondent told Deputy Hunter to talk to Mr. Richardson. Mr. Richardson stated to Hunter that he wanted to return the money, but was worried about what would happen to him. Deputy Hunter informed Mr. Richardson that nothing would happen to him, and that they only wanted the money back. Mr. Richardson stated that he didn't have all of the money, but would have it by 1:00 p.m. The Respondent gave Mr. Richardson a pager number with which to get in touch with him when Richardson had the money. The Respondent, his brother, and Hunter left Copeland’s, and drove to the residence of Bruce (last name unknown), where the robbery had occurred. Bruce was not there when they arrived, but they met Bruce driving up as they drove away. In the conversation that followed, the Respondent identified himself as Agent James. The Respondent was confrontational with Bruce and accused him of setting his brother up. Bruce denied having been involved, but Hunter was suspicious of Bruce’s version of events. Deputy Hunter told the Respondent that the facts did not sound right, and that they should report the matter to local law enforcement. The Respondent, Deputy Hunter and Reverend James went to the local police department; however, they were advised that the Gadsden County sheriff had jurisdiction. They did not seek assistance from the sheriff's department because of a personal conflict between Respondent's brother and the watch officer at the sheriff's department. Thereafter, the Respondent called Ms. Copeland to find out where Mr. Richardson was living. The Respondent, Reverend James, and Deputy Hunter traveled to the area known as Coon Bottom in the vicinity of State Road 12 in Gadsden County looking for Mr. Richardson. They encountered three boys, and the Respondent identified himself as Agent James. He asked them if they knew where Mrs. Richardson lived, and the boys pointed out her house. The Respondent, Respondent's brother, and Deputy Hunter went to her house and asked her where her son, Colby, was. When she asked why they wanted to know, the Respondent identified himself as "Agent James" and stated that they were looking for Colby. Ms. Richardson stated that she did not know where he was. Deputy Hunter wrote the Respondent's beeper number on the back of his (Hunter's) business cards, gave it to Ms. Richardson, and they left. Later that day, when Colby did not contact them, Deputy Hunter again suggested to the Respondent and Reverend James that they report the offense to the local sheriff. They obtained the mobile number of an investigator with the local Sheriff's Office. Reverend James dialed the number and handed the phone to Deputy Hunter who advised the sheriff investigator of the information as he knew it. On March 18, 1996, eight months after the incident, the Respondent gave a sworn statement to Internal Inspector John W. Harris of the Department of Business and Professional Regulation. Prior to giving his statement, the Respondent was allowed to review the statements previously given by Ms. Copeland and Deputy Hunter. The Respondent was placed under oath and notified that giving a false statement under oath constituted perjury. The Respondent stated to the investigator that he was in Tallahassee on June 17, 1995, on his way to a Narcotics Investigations Identification school in Pensacola. The Respondent stated that he and Deputy Hunter traveled to Quincy in his state vehicle to find the individual identified as Colby Richardson, who had robbed his brother. The Respondent stated that he was driving his police car, carrying his weapon and wearing his badge around his neck. Respondent stated they went to Colby Richardson's girlfriend's house, and that he introduced himself as "James" and that he introduced Deputy Hunter as "Hunter." When the Respondent was asked if he introduced himself as "Agent James" to Ms. Copeland, he stated, "No, I just said James." When asked if he had shown Ms. Copeland a badge, he stated, "No, I can't recall showing her a badge." When he was again asked if he reached inside his shirt and pulled out his badge to show her, he stated, "No, not that I can recall." The Respondent was asked if he showed his badge to anyone while he was near Colby Richardson's mother's house. The Respondent stated that he did not show his badge to the juveniles nor to Ms. Richardson. Respondent admitted that he wore his badge on a chain around his neck, and that he had it on his neck when he was talking to Ms. Copeland. The Respondent believes that Ms. Copeland knew that he was wearing a badge because she could see the outline of the badge under his shirt. There is no evidence and it is not alleged that Respondent knew at the time of the incident that his brother had not been robbed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes, (1995), and that Respondent's certifications be suspended for a period of twelve months and until he presents evidence to the commission that he has taken such courses as the commission may direct on professional responsibility. DONE AND ENTERED this 30th day of December, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1998. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Theodore E. Mack, Esquire Powell & Mack 803 North Calhoun Street Tallahassee, Florida 32303 A. Leon Lowry, II, Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The central issue in this case is whether Respondent committed the offenses alleged in the administrative complaint dated October 26, 1993; and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with regulating the practice of medicine within the State of Florida. The Respondent, Jerome Rotstein, M.D., is a licensed physician having been issued license number ME 0025256. Respondent is a board certified internist, board eligible in rheumatology, who has (prior to the emergency order of restriction later described) in his forty-year practice never been sanctioned. At all times material to the allegations of this case, however, Respondent was subject to an emergency order restricting his practice of medicine. Such order was issued on June 10, 1993, and provided, in pertinent part: Dr. Rotstein shall prescribe no controlled substances. Dr. Rotstein shall not dispense, administer, mix or otherwise prepare any controlled substances. The underlying administrative complaint issued incidental to the emergency order of restriction alleged Respondent had prescribed excessive quantities of controlled substances to a patient. At the time of hearing in this case, the related matter had not gone to formal hearing. An explanation for the delays in the first emergency order have not been made a part of this record. On September 15, 1993, Respondent provided three prescriptions, all dated September 16, 1993, for patient J.P. The prescriptions were for 30 Tylenol #4 tablets, 15 Restoril 30 mg. tablets, and for 60 tablets of Soma. On September 17, 1993, Respondent provided a prescription for patient R.K. for 60 Tylenol #4 tablets. On September 17, 1993, Respondent provided a prescription for patient A.D. for 60 Tylenol #4 tablets. On September 17, 1993, Respondent provided a prescription for patient D.N. for 30 Tylenol #4 tablets. On September 20, 1993, Respondent provided two prescriptions for patient R.L. for 30 Tylenol #4 tablets and 15 Restoril 30 mg. tablets. Tylenol #4 is a legend drug as defined in Section 465.003(7), Florida Statutes. It contains codeine, a schedule III controlled substance listed in Chapter 893, Florida Statutes. Restoril is a legend drug as defined in Section 465.003(7), Florida Statutes. It contains temazepam, a schedule IV controlled substance listed in Chapter 893, Florida Statutes. Soma is not a controlled substance. On or about September 10, 1993, Respondent consulted with an attorney, Edward Serer, who advised Respondent that the emergency order of restriction described above was only effective for ninety days. Further, the attorney advised Respondent that additional legal research would be required to determine if the case law interpreted the statute (cited as Section 120.54(9)(c), Florida Statutes) in the same manner. Additionally, Attorney Serer advised Respondent that further research would not be conducted until he returned from vacation and was formally retained by Respondent. On September 21, 1993, when Attorney Serer returned from his vacation, he was advised by Respondent that he had resumed issuing prescriptions for controlled substances. On that date Attorney Serer advised Respondent to discontinue any further prescription issuance until legal research could be completed. Although Respondent believed he was entitled to issue prescriptions after ninety days (from the date of the emergency order of restriction), such belief was mistaken. Respondent did not contact the Department to seek its opinion regarding the emergency order of restriction. At that time Respondent was represented by Attorney Harold Braxton who was later replaced as counsel for Respondent. No proof was submitted regarding any opinion Attorney Braxton may have given. The evidence does not establish that the prescriptions in this case were excessive or inappropriately issued except with regard to the restrictions then in effect. That is, there is no evidence that the patients for whom prescriptions were issued were exposed to injury as a result of the Respondent's action. Respondent issued no prescriptions prior to the expiration of ninety days (from the date of the emergency order of restriction) or after he was directed to refrain from doing so on September 21, 1993. Respondent did not intentionally violate the provisions of the emergency order of restriction.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Board of Medicine enter a final order reprimanding the Respondent for his conduct in connection with this matter, and imposing an administrative fine in the amount of $500.00. DONE AND RECOMMENDED this 16th day of December, 1993, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6238 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1 through 3, and 5 through 16 are accepted. Paragraph 4 is rejected as the restriction was issued based upon the allegation of prescribing excessive quantities of controlled substances; such allegation has not been established as factually accurate in these proceedings. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 1 through 17, 19, 22, 24, 25, 26, 27, and 28 are accepted. Paragraph 18 is rejected as irrelevant. Paragraph 20 is rejected as contrary to the weight of the evidence; it is accepted that Respondent mistakenly believed he was entitled to write prescriptions after ninety days. See Affidavit of Attorney Serer. Paragraph 21 is rejected as contrary to the weight of the evidence. See Affidavit of Attorney Serer. Paragraph 23 is rejected as contrary to the weight of the evidence. Paragraph 29 is rejected as contrary to the weight of the evidence. Paragraph 30 is rejected as repetitive. COPIES FURNISHED: Salvatore A. Carpino One North Dale Mabry Suite 1010 Tampa, Florida 33609 Kenneth J. Metzger Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Dorothy Faircloth Executive Director Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for disposition is whether Petitioner, Mr. Franqui, is entitled to licensure as a real estate salesperson in the State of Florida.
Findings Of Fact Jose C. Franqui, a resident of Kissimmee, Florida, was previously licensed as a real estate broker in the State of New York until 1979. When the economy and interest rates slowed real estate sales, he moved back to his native Puerto Rico. Later, he returned to live in Florida and, on March 3, 1997, he applied to the Florida Real Estate Commission for licensure as a real estate salesperson. The application, signed by an affidavit by Mr. Franqui, includes question no. 9 which inquires whether the applicant " . . . [Has] ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld. . . ." In boldface print, the question on the application form warns that the answer will be checked against local, state, and federal records and that failure to answer accurately could cause denial of licensure. Mr. Franqui answered "no" to question No.9. In 1966 in New York, Mr. Franqui was charged and convicted of carrying concealed tear gas. He was fined $200. On May 14, 1978, also in New York, after an altercation with his wife, Mr. Franqui was arrested for assault. He spent a night in jail and was released. On August 11, 1978, he pled guilty to the lesser offense of harassment and received a "conditional discharge." Neither of these incidents was disclosed by Mr. Franqui on his application for licensure. Instead, he claims he did not remember the disposition of the assault charge and that he considered the tear gas charge too remote in time to be of any consequence. The explanations do not excuse Mr. Franqui's patent disregard of the terms of the question at issue. Nor does the testimony of Mr. Umpierre, a co-worker, that ". . . Franqui is a nice, honest person . . ." obviate the fact of Mr. Franqui's falsehood.
Recommendation Based on the foregoing, it is recommended that the agency enter its final order denying Jose C. Franqui's application for licensure as a real estate salesperson. DONE AND ENTERED this 8th day of October, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1998. COPIES FURNISHED: Jose C. Franqui, pro se 3511 Bonaire Boulevard Apartment 2401 Kissimmee, Florida 34741 Manuel E. Oliver, Assistant Attorney General Department of Legal Affairs Suite 107, South Tower 400 West Robinson Street Orlando, Florida 32801 Henry M. Solares, Director Division of Real estate Department of Business and Professional regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
